Citation Nr: 9917056
Decision Date: 06/21/99 Archive Date: 06/29/99
DOCKET NO. 97-34 778 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for migraine headaches,
claimed as secondary to service-connected tinnitus.
2. Entitlement to an increased evaluation for lumbosacral
strain, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The veteran served on active duty from May 1971 to July 1985.
This appeal comes before the Board of Veterans' Appeals
(Board) from a December 1996 rating decision of the Jackson,
Mississippi, Regional Office (RO) of the United States
Department of Veterans Affairs (VA). In that decision, the
RO denied entitlement to an increased rating for lumbosacral
strain, and found that new and material evidence had not been
presented to reopen a claim for service connection for
migraine headaches.
The Board will address the issue of entitlement to service
connection for migraine headaches in a remand that follows
the decision on the other issue on appeal.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal for an
increased disability rating for lumbosacral strain.
2. The veteran's lumbosacral strain is currently manifested
by chronic low back pain, without evidence of muscle spasm or
marked limitation of motion in any direction.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 10 percent
for lumbosacral strain have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40,
4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking a disability rating greater than 10
percent for his service-connected lumbosacral strain. He
contends that his low back disability has worsened. A person
who submits a claim for veteran's benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107(a) (West 1991). The United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) (hereinafter,
"the Court") has defined a well grounded claim as a
plausible claim; one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990).
A claim for an increased rating for a disability is generally
well grounded when an appellant indicates that the severity
of the disability has increased. See Proscelle v. Derwinski,
2 Vet. App. 629, 631-32 (1992). As the veteran claims that
his lumbosacral strain has worsened, the Board finds that his
claim for an increased rating is a well grounded claim within
the meaning of 38 U.S.C.A. § 5107(a).
When a veteran has presented a well grounded claim (West
1991), VA has a duty to assist the veteran in the development
of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this
case, the Board finds that the facts relevant to the
veteran's claim for an increased rating for lumbosacral
strain have been properly developed, such that VA has
satisfied its statutory obligation to assist the veteran in
the development of that claim.
Disability ratings are based upon the average impairment of
earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1998). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4 (1998). In determining the
current level of impairment, the disability must be
considered in the context of the whole recorded history,
including service medical records. 38 C.F.R. §§ 4.2, 4.41
(1998). Nevertheless, the present level of disability is of
primary concern, and the past medical reports do not have
precedence over current findings. Francisco v. Brown, 7 Vet.
App. 55 (1994). The Court has emphasized that evaluation of
musculoskeletal disabilities also includes consideration of
functional loss due to pain on motion, weakened movement,
excess fatigability, diminished endurance, or incoordination,
and of impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59 (1998); DeLuca v. Brown, 8 Vet.
App. 202 (1995). Where there is a question as to which of
two ratings shall be applied, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7
(1998).
Under the rating schedule, lumbosacral strain is evaluated as
follows:
Severe; with listing of whole spine to
opposite side, positive Goldthwaite's
sign, marked limitation of forward
bending in standing position, loss of
lateral motion with osteo-arthritic
changes, or narrowing or irregularity of
joint space, or some of the above with
abnormal mobility on forced
motion..........................40
With muscle spasm on extreme forward
bending, loss of lateral spine motion,
unilateral, in standing position...20
(CONTINUED ON NEXT PAGE)
With characteristic pain on
motion..............................10
With slight subjective symptoms
only...........................0
38 C.F.R. § 4.71a, Diagnostic Code 5295 (1998).
In a VA medical examination in April 1988, the veteran
reported that he had low back pain which had begun during
service, in 1983, while he was lifting furniture. He
reported that he was treated for low back pain and placed on
a profile. He reported that he currently had back pain after
driving for a couple of hours. On examination, his
lumbosacral spine had ranges of motion of 85 degrees of
flexion, 15 degrees of extension, 40 degrees of lateral
bending to each side, and 40 degrees of rotation to each
side. The examining physician noted tenderness in the
veteran's lumbar region, without radiating pain or sciatic
notch tenderness. In a February 1989 hearing at the RO, the
veteran reported that he had low back pain for which he took
medication. He reported that after prolonged lifting,
standing, or sitting, he could not bend over or lift
anything.
VA outpatient treatment notes dated from 1989 to 1999
indicated that the veteran was seen about one to three times
per year for chronic low back pain. On most occasions, the
veteran reported that he had no radiation of pain into the
legs. In a couple of instances, he reported cramping in his
calves and numbness in his feet. Electromyography and nerve
conduction studies performed in April 1994 were within normal
limits. On subsequent physical examinations, motor and
sensory functions were within normal limits. The veteran
sometimes reported that his back pain was accompanied by
muscle spasms. The examining physician found tenderness in
the paraspinal area on some occasions, but the treatment
notes contained no objective findings of muscle spasm. In
July 1996, a CT examination of the lumbar spine revealed mild
hypertrophic changes involving the facet joints at the L3-L4,
L4-L5, and L5-S1 interspaces. The examiner generally noted a
decreased range of motion of the veteran's back. The
examiner's impression was chronic pain, possibly secondary to
degenerative joint disease. The examiner prescribed
medication, heat, and exercises for the veteran's low back
pain.
In November 1998, in the most recent VA medical examination
of the veteran's back, the veteran reported that he had sharp
pain across his lower back. He reported that the pain was
aggravated by lifting, prolonged sitting, or prolonged
standing. The examining physician found ranges of the motion
of the veteran's lumbosacral spine of 60 degrees of flexion,
25 degrees of extension, 20 degrees of right lateral bending,
and 20 degrees of left lateral bending. The examiner stated,
"This is normal motion for a patient of his age." The
examiner noted that axial compression caused low back pain,
and that simulated rotation, which causes no stress on the
lower back, also brought forth complaints of pain. "These
are non-anatomical responses," the examiner wrote. There
was no evidence of muscle spasm to palpation. The veteran
reported tenderness at L5. The veteran reported low back
pain with straight leg raising in the supine position at 75
degrees on the right side, and at 45 degree on the left side.
Straight leg raising in the sitting position caused no low
back pain. The examiner stated that those results
represented more non-anatomical responses. Lumbar spine x-
rays revealed minute osteophytes, with no narrowing of the
disc spaces. The examiner reported that the small
osteophytes were of no clinical significance. The examiner
stated that the numerous non-anatomical responses raised
questions about the history provided by the veteran and about
the veteran's cooperation. The examiner found that the
veteran had no loss of motion due to weakness, fatigue, or
incoordination. The examiner stated that the veteran's
functional ability might be compromised temporarily during
acute flare-ups; but the examiner indicated that it was not
feasible to estimate the additional limitation of motion due
to pain on use or during a flare-up.
The evidence indicates that the veteran has ongoing low back
pain. While the veteran has reported muscle spasms, no
muscle spasms have been observed by the physicians who have
examined and treated the veteran. The range of motion of the
veteran's lumbar spine decreased between examinations in 1988
and 1998, and outpatient treatment notes indicated that the
range of motion was diminished, although the physician who
examined the veteran in November 1998 stated that the range
of motion was normal for the veteran's age. The 1998
examiner stated the opinion that the arthritic changes in the
veteran's lumbar spine were small and not significant.
Overall, the evidence indicates that the veteran's
lumbosacral strain is mainly manifested by low back pain,
which is appropriately addressed by the current 10 percent
rating. The evidence does not indicate that the veteran has
significant additional functional loss due to weakness,
fatigue, diminished endurance, or incoordination. The Board
concludes that the preponderance of the evidence is against a
rating in excess of the current 10 percent rating.
ORDER
Entitlement to a disability rating in excess of 10 percent
for lumbosacral strain is denied.
REMAND
The veteran contends that he has migraine headaches that are
related to his service-connected tinnitus. As noted above,
the RO indicated in a December 1996 rating that new and
material evidence had not been presented to reopen a claim
for service connection for migraine headaches. In September
1998, the Board found that there had been no final
disallowance of the veteran's claim for service connection
for migraine headaches. The Board found that the RO had
therefore erred in treating the issue as a request to reopen
a previously denied claim, rather than as a claim for service
connection. The Board remanded the case for the RO to cite
the pertinent law and regulations applicable to a claim for
service connection for migraine headaches, both on a direct
basis and on a secondary basis. In two supplemental
statements of the case, issued on two separate dates in
January 1999, the RO continued to address the migraine
headache claim as a request to reopen. The RO discussed the
law and regulations regarding the requirement to submit new
and material evidence to reopen a claim, but did not discuss
the law and regulations governing a claim for service
connection.
The Board's September 1998 remand was directed to ensure due
process for the veteran, with particular attention to the
Court's emphasis that an appellant must be notified of the
legal requirements pertaining to a claim for service
connection. See Bernard v. Brown, 4 Vet. App. 384 (1993).
In further protection of due process, the Court has ruled
that the Board has a duty to ensure that the RO complies with
the remand orders of the Board or the Court. Stegall v.
West, 11 Vet. App. 268 (1998). Therefore, the Board will
again remand the veteran's claim for service connection for
migraine headaches, for the RO to issue a new rating decision
and a supplemental statement of the case that addresses the
claim as a service connection claim, and discusses the
requirements for direct and secondary service connection.
Accordingly, this case is REMANDED for the following:
The RO should notify the veteran of the
legal requirements for a claim for direct
or secondary service connection. The RO
should readjudicate the veteran's claim
regarding migraines headaches as a claim
for direct or secondary service
connection, and not as a request to
reopen a previous claim.
After the completion of the foregoing actions, the RO should
review the case. If the decision on any issue remains
adverse to the veteran, he and his representative should be
furnished with a supplemental statement of the case and
afforded an opportunity to respond. Thereafter, the case
should be returned to the Board for appellate consideration,
if otherwise in order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals